No. 89-307
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF
ROXY L. ANDERSON,
Petitioner and Appellant,
and
ARVID W. ANDERSON,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable H. R. Obert, Judge presiding.
COTJNSEL OF RECORD:
For Appellant:
Kevin T. Sweeney; Sweeney & Healow, Billings, Montana
For Respondent:
Greg W. Hennessy; Bjella, Neff, Rathert, Wahl & Eiken,
Willistown, North Dakota
Submitted on Briefs: Oct. 25, 1989
Decided: December 20, 1989
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D
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Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from an order by the District Court,
Seventh Judicial District, Dawson County, Montana, modifying
a custody order. Roxy Anderson Denning appeals. We affirm.
The issues presented for our review are:
1. Does substantial credible evidence support the
District Court's findings of fact in regard to modification
of custody pursuant to 5 40-4-219(1), MCA?
2. Does the petition for modification of custody meet
the jurisdictional requirements of 5 40-4-220, MCA?
Mr. Arvid W. Anderson (father) and Ms. Roxy L. Anderson
Denning (mother) were married in 1968. They had three sons,
Duane, Kory and Shane. Father and mother were divorced in
1985. The divorce decree granted joint custody, with resi-
dential custody to mother. Mother and the children have
since resided in Glendive, Montana, and mother is remarried
to Mr. Michael Denning. Father moved to Williston, North
Dakota, and married his present wife, Carol Anderson, in
April 1988.
Father exercised his visitation rights regularly after
the divorce. In the summer of 1988 the two younger sons
expressed a desire to live with father. At this time Duane
was 18, and Kory and Shane were 13 and 11, respectively,
When mother did not agree to this suggestion, father filed a
petition for modification of custody, requesting that the two
younger sons be allowed to live with him and his new wife in
Williston, North Dakota. The older son was approaching his
senior year in high school and elected to stay in Glendive,
Montana, to finish his schooling.
After a hearing, the District Court granted father's
petition. Mother appeals.
Does substantial credible evidence support the District
Court's findings of fact in regard to modification of custody
pursuant to 40-4-219 (1), MCA?
This Court's standard of review of a custody order is
whether the district court's findings of fact are supported
by substantial credible evidence. In re Marriage of Morazan
(Mont. 1989), 772 P.2d 872, 874, 46 St.Rep. 814, 817. Dis-
trict court findings of fact will be overturned only if
clearly erroneous. Rule 52(a), M.R.Civ.P.
Modification of a prior custody decree is governed by R
40-4-219, MCA, which provides in pertinent part:
Modification. (1) The court may in its dis-
cretion modify a prior custody decree if it finds,
upon the basis of facts that have arisen since the
prior decree or that were unknown to the court at
the time of entry of the prior decree, that a
change has occurred in the circumstances of the
child or his custodian and that the modification is
necessary to serve the best interest of the child
and if it further finds that:
(c) the child's present environment endangers
seriously his physical, mental, moral, or emotional
health and the harm likely to be caused by a change
of environment is outweighed by its advantages to
him:
(d) the child is 14 years of age or older and
desires the modification;
Pursuant to S 40-4-219(1), MCA, the court must find that a
change has occurred in the circumstances of the child, that
the modification is in the best interests of the child, and
that the requirement of one of the subsections is satisfied.
In the present case father contends that subsection (c) is
satisfied in that the children's environment in mother's home
seriously endangers the children's physical, mental, moral or
emotional health and that the advantage of a change would
outweigh any harm. Father also notes that his son, Kory, is
now 14 and may choose his residential parent pursuant to
subsection (d).
On December 21, 1988, the District Court held a hearinq
on father's motion. The court heard testimony from all
parties concerned, including father and his new wife, mother
and her new husband, and the older son, Duane. The court
interviewed the two younger sons, Kory and Shane, in chambers
without any other parties present.
In substance, the District Court found that the presence
of the stepfather, Michael Denning , had created a "hostile,
seige-like" environment in the home, partially because of Mr.
Denning's alcohol consumption. When Mr. Denning consumes
alcohol he becomes angry and yells at the boys. The boys
spend increasing time in their rooms in order to avoid the
stepfather. Mr. Denning has been verbally abusive, and
threatened to take the older son out and hit him. He has
mistreated the children's dog, both throwing and kickinq it.
The court noted that Mr. Denning had previously been through
alcohol treatment and had recently instigated two bar fights.
On one occasion, when Mr. Anderson came to visit his sons,
Mr. Denning slammed the door in his face.
At the hearing the District Court also found it signifi-
cant that Kory would be 14 years old on January 24, 1989, and
would at that point be able to choose his residential parent,
and that Shane expressed the desire to remain with his broth-
er Kory.
In its order modifying custody, the court concluded that
the remarriage of the mother which had caused the boys to
feel like strangers in their own home was a change in circum-
stances and that custody modification was in the boys1 best
interests. It further concluded that the boys' present
environment seriously endangered their mental, moral, emo-
tional and perhaps their physical health.
Mother contends that these findings are not supported by
substantial credible evidence, and alternatively that they do
not satisfy the "serious endangerment" standard as required
by the statute. Our review of the record, however, reveals
substantial credible evidence to support the District Court's
findings. Testimony by all three children supported the
court's findings on the home environment, the stepfather's
drinking, and their apprehension of him. The children con-
firmed the abusive treatment of their dog. Kory and Shane
stated their desire to live with their father and new
stepmother.
We further conclude that these circumstances satisfy the
statutory requirements. The presence of the stepfather in
the home and the consequent change in the home environment to
one of strained relations and apprehension satisfies the
requirement of changed circumstances. The modification of
custody is in the best interests of the children since they
both desire to live with their father, and feel very comfort-
able with their new stepmother. The children's fear of their
stepfather, heightened by his drinking episodes, the hostile
home environment, and the potential for physical abuse, is
sufficient to meet the standard of serious endangerment.
-
Marriage of Morazan, (evidence of mother's unstable life-
style, combined with allegations that stepbrothers had sexu-.
ally abused M.M., was sufficient to meet custody modification
standard); In re Marriage of Cole (Mont. 1988), 763 P.2d 39,
45 St.Rep. 1965, (evidence that children feared their father
and that living with him was an extremely unhappy experience,
creating stressful home environment, was sufficient to modify
custody); In re Marriage of Cook (1986), 223 Mont. 293, 725
P.2d 562, (evidence of mother's attempt to stifle children's
relationship with father and her interference with communi-
cation with father was sufficient to modify custody); In re
Marriage of Stout (1985), 216 Mont. 342, 701 P.2d 729, (evi-
dence of mother's lack of stability and fact that she had
been arrested for driving under the influence with child in
car, was sufficient to support trial court's order modifying
custody); In re Custody of Dumont (1985), 216 Mont. 118, 700
P.2d 167, (evidence that child was subjected to harsh, re-
peated, inappropriate and excessive physical discipline and
exhibited signs of fear of stepfather was sufficient to meet
standard).
In cases involving custody of children, it is particu-
larly important that an appellate court defer to the district
court, which is able to personally evaluate the testimony of
the children and other witnesses. We do not attempt to judge
the facts based on a cold record. In this case, involving
present abuse, and the potential for future abuse by someone
with an alcohol problem, we underscore the reliance that an
appellate court places on the district court. In re Marriaqe
of West (Mont. 1988), 758 P.2d 282, 285, 45 St.Rep. 1281,
1283; Connolly v. Connolly (1981), 209 Mont. 198, 305-06, 680
P.2d 568, 572; Malcolm v. Malcolm (1982), 196 Mont. 477, 478,
640 P.2d 450, 451. We conclude that substantial credible
evidence supports the District Court's findings, and that the
statutory requirements for modification of custody were met.
We affirm the order by the District Court.
II
Does the petition for modification of custody meet the
jurisdictional requirements of § 40-4-220, MCA?
Before the district court may grant a hearing on modifi-
cation of custody, the party seeking modification must submit
an affidavit pursuant to § 40-4-220(1), MCA, which provides:
Affidavit practice. (1) A party seeking a
temporary custody order or modification of a custo-
dy decree shall submit, together with his moving
papers, an affidavit setting forth facts supporting
the requested order or modification and shall give
notice, together with a copy of his affidavit, to
other parties to the proceeding, who may file
opposing affidavits. The court shall deny the
motion unless it finds that adequate cause for
hearing the motion is established by the affida-
vits, in which case it shall set a date for hearing
on an order to show cause why the requested order
or modification should not he granted.
In the present case, father provided the District Court
with an affidavit stating that the boys had always expressed
a desire to reside with him, but that this expressed desire
"has now reached such a degree that the youngest boy has said
he is willing to give up the friends he has in Glendive i.n
order to move to Williston." He stated that the boys repeat-
edly express to him a lack of "feeling at home" in Glendive,
possibly resulting from the strained relationship with the
new stepfather. He stated the boys perceive their present
homelife as "uncomfortable." He noted that they have cousins
their age in North Dakota. Mother contends that this affida-
vit failed to establish adequate cause for a hearing, which
is the preliminary jurisdictional requirement.
There must be substantial compliance with the procedures
set forth in 5 40-4-220 ( I ) , MCA, in order to insure that all
parties have notice and an opportunity to respond.
Marriage of Stout, 701 P.2d at 732. In Marriage of Stout a
verified petition averred that the mother had a severe drink-
ing problem and had taken the minor children from the court's
jurisdiction without notice to the father. This Court con-
cluded that these averred facts, combined with allegations
that the mother's living situation had. changed and it would
be in the child.renlsbest interests to live with the f a t h e r ,
were sufficient to confer jurisdiction upon the District
Court. In the present case, we conclude that father's affi-
davit stated facts constituting adequate cause for a hearing
and the District Court properly assumed jurisdiction.
Affirmed.
F e Concur:
J A
F
4.T
Chief Justice
J11,ctice R. C. McDonaugh did not participate in this
opinion.